Women breaking free from the shackles of discriminatory laws

Arvind Jain writes that it is ironical that even today, whether explicitly or implicitly, unmarried women are preferred for employment in the government and the private sectors and married women are considered ineligible

In the name of justice

‘Women will have to use legal weapons to protect their constitutional rights’

C.B. Muthamma (1924-1999) was the first woman to be appointed to the Indian Foreign Service (IFS) and the first woman ambassador of India. Her father passed away when she was just 9. All her life, she fought for gender rights. Slain by the System is one of her talked-about books.

Muthamma felt hurt and humiliated by the fact that 32 years after Independence and 29 years after the enforcement of the Constitution, married women were considered ineligible for appointment to the IFS and female members of the service were required to obtain written permission from the government before getting married. Why? Just because they were women – slaves of half of humanity.

Muthamma came across the judgment of Orissa High Court in the case, Radha Charan Patnaik vs State of Orissa (AIR 1969 Orissa 237). An advertisement was issued, inviting applications for appointment as sessions judges. The advertisement barred married women from applying and said that if an appointee got married afterwards and if the government felt that her marriage was coming in the way of proper discharge of her duties, it might ask her to resign, that is, sack her. This provision was challenged by a clutch of woman lawyers. Justices S. Burman and B.K. Patra of the Orissa High Court found the stipulations unconstitutional. Muthamma saw a ray of hope in this judgment.

C.B. Muthamma (1924-2009), the first female member of the Indian Foreign Service

After carefully weighing all the pros and cons, she decided not to take the blatant discrimination lying down. She knocked on the door of the courts to end the gender prejudice in government rules, despite the Constitution proscribing any kind of discrimination on the grounds of religion, caste, gender or place of birth. She filed a petition in the Supreme Court under Article 32 of the Constitution.

During the proceedings, representing the Government of India, solicitor general Soli Sorabjee told the court that if a female member of the service got married, there would be a greater risk or possibility of official secrets and sensitive documents being leaked, prompting Justice Krishna Iyer to ask whether there was no such possibility in the case of a male IFS officer.

In the judgment in the case C.B. Muthamma vs Union of India (petition number 743/1979; judgment dated 17 September 1979), the Supreme Court bench headed by Justice Krishna Iyer said:

“This writ petition by Miss Muthamma, a senior member of the Indian Foreign Service, bespeaks a story which makes one wonder whether Articles 14 and 16 belong to myth or reality. The credibility of constitutional mandates shall not be shaken by governmental action or inaction but it is the effect of the grievance of Miss Muthamma that sex prejudice against Indian womanhood pervades the service rules even a third of a century after Freedom. There is some basis for the charge of bias in the rules and this makes the ominous indifference of the executive to bring about the banishment of discrimination in the heritage of service rules. If high officials lose hopes of equal justice under the rules, the legal lot of the little Indian, already priced out of the expensive judicial market, is best left to guess. This disturbing thought induces us to make a few observations about the two impugned rules which appear prima facie, discriminatory against the female of the species in public service and have surprisingly survived so long, presumably, because servants of governments are afraid to challenge unconstitutional rule-making by the Administration.

“Miss Muthamma, the petitioner, complains that she had been denied promotion to Grade I of the Indian Foreign Service illegally and unconstitutionally. She bewailed that, to quote her own words;

‘… one of the reasons for the petitioner’s supersession is the long-standing practice of hostile discrimination against women. Even at the very threshold, when the petitioner qualified for the Union Public Services at the time of her interview, the Chairman of the UPSC tried to persuade (dissuade) the petitioner from joining the Foreign Service. On a subsequent occasion he personally informed the Petitioner that he had used his influence as Chairman to give minimum marks to her in the viva. At the time of entry into the Foreign Service, the petitioner had also to give an undertaking that if she were to get married she would resign from the service.

‘That on numerous occasions the petitioner had to face the consequences of being a woman and thus suffered discrimination though the Constitution, specifically under Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article 14 of the Constitution provides the principles of equality before law …

‘That members of the Appointments Committee of the Union Cabinet are basically prejudiced against women as a group. The Prime Minister of India has been reported in the Press as having stated that most of the women who are in the service at senior levels are being very systematically selected for posts which have traditionally been assigned a very low priority by the Ministry.’

“If a fragment of these assertions were true, unconstitutionality is writ large in the administrative psyche and masculine hubris haunts the echelons in the concerned Ministry. If there be such gender injustice in action, it deserves scrupulous attention from the summit so as to obliterate such tendency.

“What is more manifest as misogynist in the Foreign Service is the persistence of two rules which have been extracted in the petition. Rule 8(2) of the Indian Foreign Service (Conduct & Discipline) Rules, 1961, unblushingly reads:

‘Rule 8(2): A woman member of the service shall obtain the permission of the Government in writing before her marriage is solemnized. At any time after the marriage, a woman member of the Service may be required to resign from service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service.’

“Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before she marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species.

“Rule 18 of the Indian Foreign Service (Recruitment Cadre, Seniority and Promotion) Rules, 1961, run in the same prejudicial strain. Its sub-clause (4) says, “No married woman shall be entitled as of right to be appointed to the service.

“At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex, forgetting how our struggle for national freedom was also a battle against woman’s thraldom. Freedom is indivisible, so is Justice. That what our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz, our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament makes rules in the teeth of Fundamental Rights, especially when high political office, even diplomatic assignment, has been filled by women, the inference of die-hard allergy to gender parity is inevitable.

“We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4) has been deleted on November 12, 1973. And, likewise, the Central Government’s affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinize or strike down these rules.

“The petitioner has, after the institution of this proceeding, been promoted. Is it a case of post hoc, ergo propter hoc? Where justice has been done, further probe is otiose. The Central Government states that although the petitioner was not found meritorious enough for promotion some months ago, she has been found to be good now, has been upgraded and appointed as Ambassador of India to the Hague, for what it is worth. Her surviving grievance is only one. During the interval of some months between her first evaluation and the second, some officers junior to her have gone above her. In the rat race of Indian official life, seniority appears to be acquiring a religious reverence. Since the career ahead of the petitioner may well be affected by the factum of prior birth into Grade I of the Service, her grievance turning on seniority cannot be brushed aside. Her case, with particular focus on seniority, deserves review vis-a-vis those junior to her who have been promoted in the interval of some months. The sense of injustice rankles and should be obliterated so that every servant in strategic position gives of his or her best to the country. We have had the advantage of the presence of the learned Solicitor-General, appearing for the Union of India. With characteristic fairness he has persuaded his client to agree to what we regard as a just gesture, viz, that the Respondent-Union of India will shortly review the seniority of the petitioner, her merit having been discovered and her seniority to Grade II being recognized. We direct accordingly.

“Subject to what we have said above, we do not think it necessary to examine the averments of mala fides made in the petition. What we do wish to impress upon Government is the need to overhaul all Service Rules to remove the stain of sex discrimination, without waiting for ad hoc inspiration from writ petitions or gender charity.

We dismiss the petition but not the problem. Petition dismissed.” (AIR 1979 Supreme Court 1868).

Though the petition was ultimately dismissed, Justice Iyer’s carefully crafted judgment and his progressive stance need to be understood in the historical perspective. And we should also dwell upon the legal struggles of other women, who took the lead in emancipating half of the population.

Needless to say that Muthamma had moved court to secure her personal interests. But her struggle inspired many other women to follow in her footsteps. The constitutionality of anti-women rules and laws was successfully challenged in a series of historic legal cases.

Air India had similar discriminatory rules regarding air hostesses, which were challenged in the case of Air India versus Nargesh Mirza (AIR 1981, Supreme Court 1829).

It is ironical that even today, whether explicitly or implicitly, unmarried women are preferred for employment in government and private sectors and married women are considered ineligible. Women are sacked the moment they demand maternity leave. Among the well heeled, family pressure begins to build on women to quit their jobs after marriage. Fearing sexual violence and harassment at the workplace, a large chunk of women feel safer looking after their household and rearing children. Is this not slaying of women by the system?

(Translation: Amrish Herdenia; Editing: Anil)

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About The Author

Arvind Jain (born 7 December 1953) is an advocate in the Supreme Court. He is known for his writing centred on 'women, society and the law in India'. 'Aurat hone ka Saja', 'Uttaradhikar Banam Putradhikar', 'Nyayachetrey Anayachetrey', 'Yaun Hinsa Aur Nyaya ki Bhasha' and 'Aurat: Astitva aur Asmita' are his thought-provoking works on women and the law. He has also published a collection of short stories, 'Lapata Ladki'. He is a member of the expert committee set up by the Government of India for drafting a Bill to tackle crime against children. He was awarded 'Sahityakaar Sammaan' (by the Delhi government) in the year 1999-2000 and 'Rashtriya Shamsher Sammaan' in the year 2001

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